Australia: Update on the Planning Act 2016

ONLINE NOTICES AND JUDICIAL REVIEW

Most Queensland Councils will be well prepared by now for the commencement of the new Planning Act 2016 (Qld) on 3 July 2017. Development assessment systems will have been updated to accommodate procedural changes, timing changes and structural changes. Council planners will be coming to terms with the substantive changes, for example, the new decision rules and requirement for online notices. Senior Associate, Sarah Hausler takes a closer look at the implications of the online notice requirement.

One of the outcomes of the new Planning Act is the increased opportunity for community involvement in planning and development provided by the online notice requirement. Increased community access and participation in the planning process was one of the drivers for the legislation, supported by both sides of government.

But is greater public access to information and increased community involvement a double-edged sword? The requirement to post development assessment information, including the reasons for the decision online will certainly result in more informed questions and complaints from community members, interest groups and industry about proposals and decisions. It will also most certainly increase the workload of development assessment officers, and Councils should be considering the potential impacts in relation to staff and resourcing.

"This goes a long way towards making the system more open and transparent and aims to rebuild some of the trust that has been lost over time between communities and the planning system."

This now explicit recognition of jurisdictional error proceedings is likely to give rise to some new interest and provide certainty that decisions are reviewable.

WHEN IS IT REQUIRED?

An online notice of a development application decision is required where the Assessment Manager is a Council, SARA or an entity prescribed by regulation; and the development application involved a material change of use, reconfiguration of a lot, certain building works, or development prescribed by regulation. If the development application is for operational work or building work assessable against the building assessment provisions, then an online notice of the decision is not required.

Referral agencies are also required to publish a similar online notice where the referral agency is SARA or an entity prescribed by regulation; and for any development, other than development prescribed by regulation (currently there are none).

WHAT IS REQUIRED?

The Planning Act requires that the Council's online notice:

  1. describe the development
  2. describe the applicable assessment benchmarks (note this is not merely a requirement to 'identify' or 'state' the assessment benchmarks);
  3. for impact assessable applications:
    1. 'any relevant matters' considered as part of the decision e.g. planning need, planning scheme being overtaken by events etc.;
    2. a description of matters raised in submissions, and how they were dealt with in reaching the decision;
    3. the reasons for the Assessment Manager's decision;
    4. the reasons why the application was approved despite not complying with benchmarks (if applicable); and
    5. any matters prescribed by regulation.

WHY AN ONLINE NOTICE?

It is relevant that the reasons for the decision are not required to be provided to the applicant, referral agencies or submitters, but instead are published online to the public at large. In introducing the Planning Bill to Parliament, the Honourable Jackie Trad stated that:

'We received a lot of feedback from community and representative groups who have found it difficult to understand the basis for development decisions. So now, for the first time, we will require assessment managers to publish reasons for both approvals and refusals. This goes a long way towards making the system more open and transparent and aims to rebuild some of the trust that has been lost over time between communities and the planning system.'

Online notices must be published within five business days after the decision notice is given to the applicant in the case of a refusal and in the case of an approval, five business days after an appeal period ends or the applicant has confirmed it will not make written representations.

The referral agency's online notice must be published within five business days after receiving a copy of the decision notice from the assessment manager. As a result, there is likely to be quite some time between when the referral agency gives its response and when it is required to publish the online notice.

Relevantly, section 27B of the Acts Interpretation Act 1954 (Qld), expands upon the requirements for the online notice:

If an Act requires ... written reasons for the decision (whether the expression 'reasons', 'grounds' or another expression is used), the instrument giving the reasons must also—

  1. set out the findings on material questions of fact; and
  2. refer to the evidence or other material on which those findings were based;

Councils will need to strike a balance when drafting the online notice and reasons for decision between detailing every single item that the assessment manager's delegate considered, and providing a broad summary of the required content. Providing an overly detailed online notice, for example one that stated the finding of fact about each modelled scenario in a traffic report, would prove timeconsuming and costly. It would instead be sufficient for the reasons to state that the expert reports provided in support of the application were reviewed and considered to be factually accurate and provide reasonable predictions of likely impacts. Any particularly contentious issues should be addressed in more detail.

Another factor to consider is whether the online notice would assist a member of the public to understand Council's decision. Given the complexity of the planning system and the level of detail in many development applications, this no easy task and Councils might want to consider additional training or the use of external consultants and focus groups to test samples of online notices prior to going live.

JUDICIAL REVIEW

Persons seeking judicial review where they believed that a jurisdictional error had been made under SPA, were generally unable to make such an application to the Supreme Court. Instead, 'any person' could seek declarations from the Planning and Environment Court about matters under SPA.

The Planning Act now specifically contemplates that an application may be made to the Supreme Court in relation to a jurisdictional error affecting a decision or other matter under the Planning Act. There is a technical argument about whether the Supreme Court's authority in relation to jurisdictional error could have ever been effectively excluded by legislation. This now explicit recognition of jurisdictional error proceedings is likely to give rise to some new interest and provide certainty that decisions are reviewable.

This change may have significance for Councils, particularly in the context of the online notices requirements.

The online notice requirement could see increased interest by third party challenges to development assessment decisions. It may be possible for a third party to instigate an application for judicial review of a decision to approve a development application or support its planning appeal by relying on the information published in the online notice. Any errors in the online notice will affect Council's ability to defend its decision about the development application, for example errors in the descriptions of assessment benchmarks, 'relevant matters', consideration of submissions and the relevant facts and material considered.

This type of scrutiny is an intended feature of the new, more transparent system. It will be interesting to see if the new legislation achieves the balance between community concerns about development and the need to drive jobs and the economy. We will be watching the progress of these aspects of the Act and the consequences for local government.

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